AGREEMENT OF MERGER
OF
INTERNATIONAL BALER CORPORATION
(a Delaware Corporation)
AND
IBC MERGER CORPORATION
(a Delaware Corporation)
AGREEMENT OF MERGER entered into this 24th day of June,
1997 by and between International Baler Corporation (the Merging
Corporation"), IBC Merger Corporation (the "Company") and Waste Technology
Corp. ("Waste Tech"), each of which is a corporation duly organized and
existing under the laws of the State of Delaware with its principal place
of business at 5400 Rio Grande Avenue, Jacksonville, Florida 32205.
WITNESSETH:
WHEREAS, the Merging Corporation is a business
corporation duly organized and existing under the laws of the State of
Delaware;
WHEREAS, the Company is a business corporation duly
organized and existing under the laws of the State of Delaware;
WHEREAS, the total number of shares of capital stock
which the Company has authority to issue is 1,000 all of which are of one
class and without par value;
WHEREAS, Waste Tech is the owner of 85.3% of all of the
outstanding and issued stock of the Merging Corporation and the Company is
a wholly owned subsidiary of Waste Tech;
WHEREAS, the General Corporation Law of the State of
1
Delaware permits the merger of a business corporation of the State of
Delaware with and into another business corporation of the State of
Delaware:
WHEREAS, the Company, the Merging Corporation and Waste
Tech and their respective Boards of Directors thereof deem it advisable and
to the advantage, welfare and best interest of said corporation and their
respective stockholders to merge the Merging Corporation with and into the
Company, with the Company being the surviving corporation (the "Merger")
pursuant to the provisions of the General Corporation Law of the State of
Delaware upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants,
conditions and promises contained herein, the parties hereto agree as
follows:
ARTICLE I
1.1 The Merger. On the Effective Date, as hereinafter
defined in Article 1.2 hereof, the Merging Corporation shall be merged with
and into the Company in accordance with the applicable provisions of the
Delaware General Corporation Law ("DGCL"). After the Effective Date, the
Company shall continue its existence as a Delaware corporation and be
governed by the DGCL and shall amend its certificate of incorporation to
change its name to "International Baler Corporation". At the effective
Date, the separate existence of the Merging Corporation shall cease.
1.2 The Effective Date. The Merger shall become effective
(the "Effective Date") at the time when a properly executed
2
Certificate of Merger under the DGCL is duly filed with the Secretary of
State of Delaware.
1.3 Effect of Merger. On the Effective Date, the Company
shall thereupon and thereafter possess any and all of the rights,
privileges, powers, franchises, patents, trademarks, licenses,
registrations and other assets of every kind and description of the Merging
Corporation, as well as of a public and private nature, and be subject to
all the restrictions, disabilities and duties of the Merging Corporation;
and all and singular, the rights, privileges, powers and franchises of the
Merging Corporation, and all the property, real personal and mixed, and all
debts due to the Company, on whatever account as well as for stock
subscriptions as all other things in action or belonging to the Merging
Corporation shall be vested in the Company; and all property, rights,
privileges, powers, franchises, patents, trademarks, licenses,
registrations and other assets of every kind and description of the Merging
Corporation, and all and every other interest shall be thereafter as
effectively the property of the Company as they were of the Merging
Corporation, and the title to any real estate vested by deed or otherwise,
under the laws of the State of Delaware, in the Merging Corporation, shall
not revert or be in any way impaired by reason of the DGCL; but all rights
of creditors and all liens upon any property of the Merging Corporation
shall be preserved and unimpaired and all debts, liabilities and duties of
the Merging Corporation shall thenceforth attach to the Company and may be
enforced against it to the same extent as if said debts,
3
liabilities and duties had been incurred or contracted by it.
(b) From and after the Effective Date and until further
amended in accordance with the DGCL, the Certificate of Incorporation of
the Company as in effect immediately prior to the Effective Date shall
continue to be the Certificate of Incorporation of the Company.
(c) From and after the Effective Date and until altered,
amended or repealed in accordance with law, the By-Laws of the Company in
effect immediately prior to the Effective Date shall continue to be the
By-Laws of the Company as the surviving corporation.
(d) The officers and directors of the Company in office
immediately prior to the Effective Date shall continue in office until the
next annual meeting of stockholders and until their respective successors
are duly appointed or elected and qualified.
1.4 Additional Actions. If, at any time after the
Effective Date, the Company shall consider or be advised that any further
assignments or assurances in law or any other acts are necessary or
desirable (a) to vest, perfect or confirm, of record or otherwise, in the
Company title to and possession of any property or right of the Merging
Corporation acquired or to be acquired by reason of, in connection with, or
as a result of the Merger, or (b) otherwise to carry out the purposes of
this Agreement of Merger, the Company and its respective officers shall be
deemed to have granted to the Company an irrevocable power of attorney to
execute and deliver all such proper deeds, assignments,
4
assurances in law and to do all acts necessary or proper to vest, perfect
or confirm title to and possession of such property or rights in the
Company and otherwise to carry out the purposes of this Agreement of
Merger; and the proper officers and directors of the Company are fully
authorized in the name of the Merging Corporation or otherwise to take any
and all such action.
ARTICLE II
CONVERSION OF SECURITIES
2.1 Exchange Ratio; Cancellation. As of the Effective
Date, by virtue of the Merger and without any action on the part of
any securityholder of the Company or the Merging Corporation:
(a) Each share of Common Stock, no par value, of the
Company (sometimes the "Company Common Stock") outstanding, shall remain
unchanged, issued and outstanding.
(b) Each share of the Company Common Stock held by
the Company as treasury stock shall remain unchanged, issued and
outstanding.
(c) i) Each outstanding share of the Common Stock,
$.10 par value per share, of the Merging Corporation shall be converted
into shares of the common stock, $.01 par value, of Waste Tech (the Waste
Tech Shares") according to the following formula: Each outstanding share of
Common Stock of the Merging Corporation shall be valued at $.19 per share.
The total number of shares held by a stockholder of the Merging Corporation
as of the Effective Date shall be multiplied by $.19 (this number is
hereafter the "Total Dollar Value"). To determine the number of Waste Tech
Shares
5
each shareholder of the Merging Corporation shall receive such
shareholder's Total Dollar Value shall be divided by the average of the
closing bid and the ask price of Waste Tech as reported by The Nasdaq Stock
Market on the Effective Date. For example, if a shareholder of the Merging
Corporation has 100 shares of common stock of the Merging Corporation his
Total Dollar Value would be $19.00. If on the Effective Date, the average
of the bid and ask price of Waste Tech is $1.00 per share, the shareholder
of the Merging Corporation would receive nineteen (19) shares of Waste Tech
stock in exchange for his shares of stock of the Merging Corporation.
(ii) No fractional shares shall be issued and all
fractional shares shall be rounded up to the next whole share.
2.2 Stock Certificates. On and after the Effective Date,
all of the outstanding stock certificates which prior to that time
represented shares of the Merging Corporation Common Stock shall be deemed
for all purposes to evidence ownership of and to represent shares of the
Waste Tech Shares into which the shares of the Merging Corporation Common
Stock represented by such stock certificates have been converted as herein
provided. The registered owner on the books and records of Waste Tech or
its transfer agent of any such outstanding stock certificate shall, until
such certificate is surrendered for transfer or otherwise accounted for to
Waste Tech or its transfer agent, have and be entitled to exercise any
voting or other rights with respect to and receive any dividend and other
distributions upon the Waste Tech Shares
6
evidenced by such outstanding certificate as provided above.
2.3 Appraisal Rights. Any issued and outstanding Waste
Tech Shares held by stockholders of the Merging Corporation who properly
exercise their appraisal rights (collectively the Dissenting Stockholders
and individually a "Dissenting Stockholder") shall be converted into the
right to receive such consideration as may be determined to be due to such
Dissenting Stockholder pursuant to the DGCL; provided, however, that Waste
Tech Shares outstanding at the Effective Date and held by a Dissenting
Stockholder who shall, after the Effective Date, withdraw his demand for
appraisal or otherwise lose such right as provided in the DGCL shall be
deemed to have approved the Merger and as of the Effective Date, such Waste
Tech Shares shall remain unchanged.
2.4 Closing of Merging Corporation Transfer Books. At the
Effective Date, the stock transfer books of the Merging Corporation shall
be closed and no transfer of shares of the Merging Corporation shall
thereafter be made. If, after the Effective Date, certificates for the
stock of the Merging Corporation are presented to the Company or Waste
Tech, they shall be cancelled and exchanged for Waste Tech Shares as
provided in this Article II.
ARTICLE III
AMENDMENT AND TERMINATION
3.1 Amendment. This Agreement of Merger may be amended at
any time by the Boards of Directors of each of the parties hereto,
either prior to or after stockholder approval, to the fullest
7
extent permitted by law and at any time upon the action of the Board of
Directors and stockholders of each party hereto, by an amendment duly
executed by the parties hereto, at any time prior to the Effective Date.
3.2 Termination. At any time prior to the Effective Date,
this Agreement of Merger may be terminated and the Merger abandoned by
resolution of either of the Boards of Directors of the Merging Corporation
and the Company. The filing of the Certificate of Merger with the Secretary
of state of Delaware pursuant to section 1. hereof shall constitute
certification that this Agreement of Merger has not theretofore been
terminated. If terminated as provided in this section 3.2, this Agreement
of Merger shall forthwith become wholly void and of no further force or
effect.
ARTICLE IV
CONDITIONS
4.1 Conditions precedent to Obligations of the Merging
Corporation. The obligations of the Merging Corporation to consummate the
Merger are subject to the fulfillment, prior to or at the Effective Date,
of each of the following conditions:
(a) Shareholder Approval. This Agreement of Merger
shall have been approved by the affirmative vote or consent, in person or
by proxy, of the holders of at least a majority of the voting power
represented by all of the outstanding stock of the Merging Corporation.
(b) Consents. All consents, authorizations, orders
or approvals of any governmental commission, board, other
8
regulatory body or any third party required in connection with the
execution, delivery and performance of this Agreement of Merger shall have
been obtained.
4.2 Conditions precedent to Obligations of the Company.
The obligations of the Company to consummate the Merger are subject to the
fulfillment, prior to or at the Effective Date, of each of the following
conditions:
(a) Shareholder Approval. This Agreement of Merger
shall have been approved by the affirmative vote or consent, in person or
by proxy, of the holders of at least a majority of the voting power
represented by all of the outstanding stock of the Company.
(b) Consents. All consents, authorizations, orders
or approvals of any governmental commission, board, other regulatory body
or any third party required in connection with the execution, delivery and
performance of this Agreement of Merger shall have been obtained.
ARTICLE V
MISCELLANEOUS
5.1 No Waiver. The failure of any of the parties hereto
to enforce any provision hereof on any occasion shall not be deemed to be a
waiver of any preceding or succeeding breach of such provision or of any
other provision.
5.2 Entire Agreement. This Agreement constitutes the
entire agreement and understanding of the parties hereto and no
amendment, modification or waiver of any provision herein shall be
9
effective unless in writing, executed by the party charged
therewith.
5.3 Governing Law. This Agreement shall be construed,
interpreted and enforced in accordance with and shall be governed by the
laws of the State of Delaware, without regard to the principles of
conflicts of laws.
5.4 Binding Effect. This Agreement shall be binding upon,
and inure to the benefit of, the parties hereto and their
respective heirs, legal representatives, successors and assigns.
5.5 Assignment and Delegation of Duties. No party may
assign its rights or delegate its obligations under this Agreement.
5.6 Paragraph Headings. The paragraph headings herein
have been inserted for convenience of reference only, and shall in
no way modify or restrict any of the terms or provisions hereof.
5.7 Notices. All notices sent pursuant to this Agreement
shall be sent via fax transmission and certified mail, return receipt
requested, or via a reputable overnight carrier, to the other party at the
addresses indicated hereinabove (or to any new address of which any party
hereto shall have informed the others by the giving of notice in the manner
provided herein).
5.8 Unenforceability; Severability. If any term or
condition of this Agreement shall be illegal, invalid or unenforceable, all
other provisions hereof shall continue in full force and effect as if the
illegal, invalid or unenforceable provision was not a part hereof.
5.9 Execution of Documents. At any time and from time to
10
time hereafter, the parties hereto will execute and deliver such further
instruments, documents and certificates and other written assurances as
shall reasonably be required in order to consummate the transactions
contemplated hereunder.
5.10 Counterparts. This Agreement may be executed in
counterparts all of which shall be deemed to be duplicate
originals.
IN WITNESS WHEREOF, the parties hereto have executed this
instrument the date first above written.
International Baler Corporation
By: s/Ted C. Flood
---------------------------------
Ted C. Flood, President
IBC Merger Corporation
By: s/Ted C. Flood
---------------------------------
Ted C. Flood, President
Waste Technology Corp.
By: s/Ted C. Flood
---------------------------------
Ted C. Flood, President
11